COVID-19 - Updates, Webinars and Resources

Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

If you are a party to a domestic building work dispute, you can refer the dispute to the Domestic Building Dispute Resolution Victoria ('DBDRV') by filling out an online application form. A conciliation officer will then make an initial assessment to determine whether the dispute fits the preliminary requirements necessary for it to be accepted by the DBDRV.

These requirements include, but are not limited to:

Once the application has undergone this initial assessment, the dispute will either be:

  • accepted for conciliation, or
  • the parties will be issued with a certificate of conciliation which will state that the dispute is not suitable for conciliation.

Circumstances in which the dispute will be assessed as not suitable for conciliation include:

  • The referring party hasn’t provided information or documents requested by the conciliation officer during the initial assessment;
  • The referring party has failed without reasonable excuse to take reasonable steps to resolve the dispute;
  • There is no reasonable likelihood of the dispute being settled by conciliation;
  • The referral is:
  1. frivolous or otherwise lacking in substance,
  2. vexatious, or
  3. was not made in good faith, or
  • The dispute has been resolved.

Conciliation

Prior to the conciliation conference, a conciliation officer will generally contact the parties involved to:

  • discuss the issues in dispute,
  • determine what additional steps might be necessary, and
  • provide guidance as to the DBDRV process.

Commonly, a further step that’s taken is the appointment of an assessor who will assess the property and provide a report as to any defects or incomplete items.

Usually, any statements made during the conciliation are inadmissible in VCAT or other legal proceedings. This however is not the case for anything said or done by an assessor, including any report that is produced by an assessor for the conciliation.

How are conciliation conferences conducted?

When it comes time for the parties to undertake the conciliation conference itself, this may be done either:

  • in person,
  • by phone, or
  • by other electronic communication.

The method of conciliation and venue is at the discretion of the conciliation officer. The conciliation conference itself is similar to a mediation, where the parties meet to discuss the issues and seek to settle the matter, with the assistance of the conciliation officer and, if permitted, the parties’ legal representatives.

There are three potential outcomes of the conciliation conference:

  1. The dispute is unable to be resolved and a certificate of conciliation is issued which states that the dispute did not resolve;
  2. The parties enter into a Record of Agreement; or
  3. A Dispute Resolution Order is issued.

Where the parties are able to come to an agreement as to how to resolve the issues in dispute, they can either enter into a Record of Agreement or consent to the issue of a Dispute Resolution Order. The conciliation officer can also issue a Dispute Resolution Order without the consent of the parties.

The Dispute Resolution Order may provide more security than a Record of Agreement, particularly to owners, as a builder’s non-compliance with a Dispute Resolution Order must be reported to the Victorian Building Authority (‘VBA’) and VBA must take disciplinary action against the builder. As with assessor’s reports, information or documents disclosed in conciliation can be used for disciplinary proceedings against the builder.

Dispute Resolution Orders can order any of the following:

  1. That the builder rectify defective works, rectify any damage to the owner’s property, or complete incomplete building works;
  2. That the builder comply with any conditions deemed necessary while undertaking the building works; and/or
  3. That the builder or the owner make payment either directly to the opposing party or into the DBDRV Trust Fund.

Non-compliance

Where one party does not comply with a Record of Agreement or Dispute Resolution Order, either party can notify the DBDRV of the non-compliance. A notice will then be issued to the other party. In circumstances where the owner is alleging that the builder has not complied, DBDRV will correspond with the builder to determine whether this is the case. If the builder makes a statement confirming that they have not complied, a certificate of conciliation may then be issued. If, however, the builder disputes that they have not complied, DBDRV will then send an assessor to determine whether or not there has been compliance. It is only after the assessor confirms that the builder has not complied that a certificate of conciliation will be issued.

How can Sharrock Pitman Legal assist?

In the event that you are involved in a domestic building work dispute, it may be helpful to seek legal advice prior to making an application to DBDRV, in order to ensure that you are properly prepare for what is likely to be a long and involved process.

If you require advice on DBDRV or a building dispute, please feel free to contact our litigation team on 1300 205 506 or by email at litigation@sharrockpitman.com.au. As Accredited Commercial Litigation Specialists, we are able to provide you with advice regarding your options, in addition to guiding you through the steps that are appropriate in your circumstances.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Litigation [Courts & Tribunals]

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

Download our FREE handbook "Managing the Dismissal of an Employee"

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Download our FREE legal guide to Probates & Estates in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Could your business do with a “health check”?

Fill in our survey about the legal health of your business and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

Could your Not for Profit organisation do with a "health check"?

Fill in our survey about the legal health of your organisation and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.